law-condemnation | eminent domain | inverse condemnation | takings claim | fees and sanctions |
CONDEMNATION & EMINENT DOMAIN
COMPENSABILITY OF TAKINGS DAMAGES When a taking occurs, all damages associated with the taking
are not necessarily compensable, County of Bexar v. Santikos, 144 S.W.3d 455, 459 (Tex. 2004), and
“diminished value is compensable only when it derives from a constitutionally cognizable injury,” State v.
Dawmar Partners, Ltd., 267 S.W.3d 875, 878 (Tex. 2008) (per curiam). Compensability for a particular type
of condemnation damage is a question of law the Court reviews de novo. Santikos, 144 S.W.3d at 459.
RECENT EMINENT DOMAIN AND RELATED DECISIONS FROM
THE TEXAS SUPREME COURT
SUBSTITUTED OPINION ISSUED IN BILLBOARD CONDEMNATION APPEAL
State of Texas v. Central Expressway Sign Associates, No. 08-0061 (Tex. Nov. 20, 2009)(Subst. Op. by
O'Neill) (condemnation, proper method for determining market value, admissibility of expert testimony,
methods to appraise market value of condemned property)(harmful error analysis of complaints about
admission or exclusion of evidence on appeal)
THE STATE OF TEXAS v. CENTRAL EXPRESSWAY SIGN ASSOCIATES, ET AL.; from Dallas County;
5th district (05 06 00003 CV, 238 SW3d 800, 08 31 07)
motion for rehearing denied
The Court's opinion of June 26, 2009 is withdrawn and the opinion of this date is issued.
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice O'Neill delivered the opinion of the Court.
(Justice Guzman not sitting)
STATE'S CONDEMNATION DAMAGES EXPERT SHOULD NOT HAVE BEEN STRUCK, COURT SAYS
State of Texas v. Central Expressway Sign Ass'n. No. 08-0061 (Tex. Jun. 26, 2009)(O'Neill)(admissibility of
expert testimony, methods of appraising value of condemned property, here billboard easement)(exclusion
of expert witness testimony was erroneous and harmful, judgment reversed)
State of Texas v. Bristol Hotel Asset Co., No. 07-0896 (Tex. May 15, 2009)(per curiam) (condemnation,
uncompensable losses, lost revenue testimony should not have been admitted)
SWBT v. Harris County Toll Road Authority, No. 06-0933 (Tex. 2009)(Jefferson)(eminent domain, county
entity immune to claim for reimbursement of costs of telephone line relocation necessitated by toll road
project, SWBT has no vested property interest in use of public way for transmission equipment).
State of Texas v. Dawmar Partners, Ltd., No. 07-0548 (Tex. Sep. 26, 2008)(per curiam)
(condemnation appeal, state prevails)
State of Texas v. Brown, No. 05-0236 (Tex. Aug. 29, 2008)(Johnson)(award of fees for landowner's
expenses reversed on condemnor's petition) Justice O'Neill delivered an opinion concurring in part and
dissenting in part. (would remand case to trial court for consideration of sanctions against state for late
amendment of pleading)
FKM Partnership, Ltd. v. Bd. of Regents of Univ. of Houston System, No. 05-0661 (Tex. Jun 6, 2008) (Phil
Johnson) (condemnation, implications of reduction of amount of land to be taken on land owner's recovery of
fees, partial nonsuit)
Justice Willett delivered an opinion concurring in part and dissenting in part.
Canyon Regional Water Authority v. Guadalupe-Blanco River Authority, No. 06-0873 (Tex. May 16, 2008)
(Opinion by Paul Green) (intergovernmental dispute over easement for water extraction from lake,
condemnation power)
PR Investments and Special Retailers, Inc. v. Texas, No. 04-0431 (Tex. Feb. 15, 2008)(Justice Willett)
(condemnation proceeding, effect of change in plans for condemned property,jurisdiction of trial court)
AIC Management v. Crews, No. 05-0270 (Tex. Jan 25, 2008)(O’Neill) (eminent domain, condemnation,
sufficiency of legal description, UDJA, jurisdiction of Harris County Civil Courts at Law)
COURT OF APPEALS CASES IN WHICH PETITION FOR REVIEW WAS DENIED
BY TEXAS SUPREME COURT
09-0225
CASCOTT, LLC, ET AL. v. THE CITY OF ARLINGTON; from Tarrant County; 2nd district
(02-08-00042-CV, 278 SW3d 523, 02‑19‑09) (exercise of eminent domain authority to condemn the
properties)
07-0425
MCKINNEY INDEPENDENT SCHOOL DISTRICT v. CARLISLE GRACY LTD. AND GORDON M. GRIFFIN, JR.
REVOCABLE TRUST; from Collin County; 5th district (05-05-00625-CV, 222 SW3d 878, 04-24-07, pet.
denied Aug. 2008)(condemnation case)
08-0343
STANLEY V. GRAFF v. VERNON BERRY, M.D. WHITTLE, INDIVIDUALLY AND IN HIS CAPACITY AS
COUNTY COMMISSIONER, RUFUS WARD, JR., ELMER CATON, JOSEF HAUSLER, IN THEIR CAPACITIES
AS COUNTY COMMISSIONERS, AND THE COUNTY OF RED RIVER; from Red River County; 6th district (06-
07-00058-CV, ___ SW3d ___, 03-18-08, pet denied Jun 2008) (judicial notice, condemnation eminent
domain road construction, sufficiency of description, attorney's fees, official capacity)
We hold the trial court erred in granting the commissioners' motion for summary judgment. The trial court
erred in taking judicial notice of the court records in cause number 134-CV-5-93. Graff has failed to show
that our decision in Graff II, which found the description of the road in Graff I was sufficient to identify the
road with reasonable certainty, was clearly erroneous. Because the commissioners failed to prove as a
matter of law that a sixty-foot right-of-way was reasonably necessary for public travel and failed to prove as a
matter of law that the new construction is in the same location, there are genuine issues of material fact.
Because we have sustained Graff's first point of error, the award of attorney's fees must be reversed as well.
We reverse the trial court's judgment, including the award of attorney's fees, and remand this case for
further proceedings consistent with this opinion.
07-1061
FORT BEND COUNTY, TEXAS v. THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY;
from Fort Bend County; 14th district (14-05-01106-CV, 237 SW3d 355, 06-21-07, pet. denied Jun 2008)
(Justice O'Neill not sitting) (condemnation eminent domain, road easement, federal preemption)
Appellant, Fort Bend County, appeals the judgment awarding the Burlington Northern and Santa Fe Railroad
Company $90,756.51 as reimbursement of expenditures in the adjustment and relocation of an eligible utility
facility, required by the County's condemnation of land for a larger railroad crossing. In its sole issue, the
County argues the trial court erred in ordering the County to reimburse Burlington for its costs in improving
the crossing. Burlington contends that, assuming the court had jurisdiction, the award for the crossing was
proper. In four cross-issues, Burlington argues: (1) the trial court erred in denying its plea to the jurisdiction
because the condemnation of a roadway easement across an active passing track/staging facility is
preempted under the Interstate Commerce Commission Termination Act ("ICCTA");[1] (2) the County's
failure to authorize the acquisition by condemnation of the easement caused a lack of condemnation
jurisdiction; (3) the trial court erred in granting injunctive relief; and (4) the trial court erred in the statutory
construction of Section 251.102 of the Texas Transportation Code.[2] Because we find the County is
federally preempted under the ICCTA from condemning a public crossing that cuts Burlington's passing
track, we vacate the trial court's judgment and dismiss the case.
06-1051
ELDORADO PARK, LTD. v. CITY OF MCKINNEY, TEXAS; from Collin County; 11th district
(11-05-00259-CV, 206 S.W.3d 185, 11-02-06)(condemnation)
Appellant, the City of McKinney, Texas, sought to condemn property owned by appellee, Eldorado Park,
Ltd., in connection with a roadway project. The trial court appointed three special commissioners to assess
Eldorado Park's damages resulting from the condemnation. At the hearing before the special
commissioners, both parties presented expert testimony from property value appraisers on the
damages issues. The expert appraisers relied on a 1996 Federal Emergency Management Agency (FEMA)
Letter of Map Revision to determine the portion of the subject property included in the floodplain. The
special commissioners entered an award of damages to Eldorado Park.
The City appealed the special commissioners' award by filing objections with the trial court, and the trial
court placed this cause on its docket. The City designated a new expert appraiser to testify on the damages
issues at trial. The City's new expert relied on a document entitled Cottonwood Creek Master Drainage
Study for the City of McKinney (2001 Master Drainage Study) to determine the portion of the subject
property included in the floodplain. The 2001 Master Drainage Study doubled the amount of floodplain
acreage in the subject property. Eldorado Park filed a plea to the jurisdiction arguing that the City's use of
the 2001 Master Drainage Study materially changed the issues presented to the special
commissioners and, therefore, deprived the trial court of subject-matter jurisdiction. The trial court
granted Eldorado Park's plea and entered a judgment adopting the special commissioners' findings and
award. The City appeals. Because the City's designation of a new expert witness and reliance on the 2001
Master Drainage Study did not deprive the trial court of subject-matter jurisdiction, we reverse the trial
court's judgment and remand this cause for further proceedings consistent with this opinion.
07-0866
STATE OF TEXAS v. FIESTA MART, INC.; from Harris County; 14th district
(14-06-00826-CV, ___ SW3d ___, 07-03-07, pet. denied April 2008)(condemnation, inverse condemnation
claim, impaired access, relocation benefit, exhaustion of administrative remedies, lease holder)
The State of Texas brings this interlocutory appeal from a county court decision denying its plea to the
jurisdiction. In five issues, the State complains that the court erred in denying its plea to the jurisdiction
because (1) Fiesta, as a lessee of the property, does not have an ownership interest in the property
being seized, (2) Fiesta cannot recover lost profits because it has not alleged impairment of access, and
(3) Fiesta has failed to exhaust its administrative remedies in seeking relocation benefits. We affirm.